JOHN EDWARD GREEN: UPDATE: ASSOCIATED PRESS REPORTS THAT JUDGE FINE HAS REFUSED TO RECUSE HIMSELF; HEARING TO BE HELD BY ANOTHER JUDGE;

"CASEY KEIRNAN, ONE OF THE DEFENSE ATTORNEYS FOR JOHN EDWARD GREEN JR., THE DEFENDANT IN THE CAPITAL MURDER CASE, SAID FINE IS NOT BIASED AND PROSECUTORS WANT TO REMOVE HIM SO THE COURT HEARING ON WHETHER INNOCENT PEOPLE HAVE BEEN EXECUTED IN TEXAS DOESN'T TAKE PLACE. "SIMPLY BECAUSE THE JUDGE HAS A DIFFERENT LEGAL OPINION THAN THE STATE DOESN'T MEAN THEY CAN ASK TO CHANGE HORSES IN THE MIDDLE OF THE RACE," KEIRNAN SAID. "THEY WANT TO GET A DIFFERENT JUDGE THAT THEY THINK WILL RULE IN THEIR FAVOR."

REPORTER JUAN A. LOZANO: THE ASSOCIATED PRESS;

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BACKGROUND; John Edward Green, Jr, is charged with capital murder in the 2008 slaying of one of two sisters he allegedly shot during a robbery. Witnessed by the victim's two children, Huong Nguyen, 34, was killed in her own driveway. Judge Kevin Fine brought the case considerable attention after he said that the procedures for imposing the death penalty in Texas are unconstitutional, clarified that decision, then rescinded it but scheduled a hearing on actual innocence for April 27."

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"HOUSTON — A Texas judge who declared during a capital murder case that the death penalty is unconstitutional but later rescinded his ruling has refused a request by prosecutors to remove himself from the case," the Associated Press story by reporter Juan A. Lozano, published earlier today under the heading, "DA claims Texas judge has death penalty bias," begins.

"The Harris County District Attorney's Office has asked to have state District Judge Kevin Fine removed from the case, accusing him of being biased against capital punishment, said Donna Hawkins, a spokeswoman for the office," the story continues.

"District Judge Olen Underwood, who presides over the judicial region that includes Harris County, will set a hearing on the request, she said.

Vickie Long, Fine's court coordinator, said Friday the judge would not be commenting on the district attorney's request.

Fine, in ruling last month the Texas death penalty statute is unconstitutional, said it is safe to assume innocent people have been executed. He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality.

The judge later rescinded his ruling, which he made in granting a pretrial motion in a capital murder case. But he then scheduled a hearing for the end of this month to hear evidence on the issue. That hearing is now on hold.

Fine's ruling was lauded by anti-death penalty groups and criticized by many elected officials, including Gov. Rick Perry.

Fine, a Democrat, is a judge in Harris County, which sends more inmates to death row than any other county in the nation. Texas has carried out more executions than any other U.S. state.

There is strong support in Texas for the death penalty. But the state's use of it has recently come under fire from death penalty opponents who claim Texas already has used shaky evidence to execute at least one innocent man, convicted arson murderer Cameron Todd Willingham in 2004. Perry was criticized after replacing in October three members of a state panel investigating allegations of misconduct and negligence in forensic analyses that led to Willingham's conviction. The panel is still looking at Willingham's case.

Casey Keirnan, one of the defense attorneys for John Edward Green Jr., the defendant in the capital murder case, said Fine is not biased and prosecutors want to remove him so the court hearing on whether innocent people have been executed in Texas doesn't take place.

"Simply because the judge has a different legal opinion than the state doesn't mean they can ask to change horses in the middle of the race," Keirnan said. "They want to get a different judge that they think will rule in their favor.

Green is accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.

In the motion to remove Fine, Harris County District Attorney Pat Lykos wrote that Fine "has clearly articulated beliefs and opinions that reveal his partiality and bias against both the death penalty statute and the state's application of that statute in this case."

Lykos said examples of this impartiality include: the defense motion declaring the death penalty unconstitutional is not unique, the statute has long been upheld by higher courts and Fine's insistence on holding a hearing to see if innocent people have been executed.

"He cannot preside over a death penalty case in an impartial and unbiased manner. Public policy requires his recusal," Lykos wrote in the motion, which was filed last week.

Green's attorneys argue Texas' death penalty statute violates their client's constitutional right to due process of law because hundreds of innocent people nationwide have been convicted, sent to death row and later exonerated.

Fine has said he is not legislating from the bench but that there was no precedent to guide him in resolving the due process issue.

Last year, the state executed 24 people, including six cases from Harris County. Five people have been executed so far this year, one from Harris County. The state's next execution is set for April 22."

The story can be found at:

http://www.star-telegram.com/2010/04/09/2102661/da-texas-judge-has-death-penalty.html

Harold Levy...hlevy15@gmail.com;